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Fed Circuit: Indefinite Suspension can't go on forever.

May 26, 2007

Fed Circuit: Indefinite Suspension can't go on forever.

Posted By
The Law Offices of Eric L. Pines, PLLC

In a decision issued this past Wednesday, the Federal Circuit Court of
Appeals held that an employee who has been indefinitely suspended has
two separate MSPB Appeal rights. The first is the right to challenge the
imposition of the indefinite suspension, and the second to challenge the
continuation of the indefinite suspension. Rhodes v. Merit Systems Protection
Board, Fed. Cir. No. 2006-3340; MSPB Docket No. NY-0752-06-0015-I-1 (May
23, 2007 ).

In Rhodes, an employee was indefinitely suspended for a criminal indictment
that occurred off the job. He filed a grievance through his Union, challenging
the Agency’s decision to put him on an indefinite suspension. The
grievance was withdrawn after the employee was found innocent of the criminal
charges. Mr. Rhodes immediately brought his challenge to the Agency’s
failure to reinstate him from the rolls – 5 weeks after the criminal
acquittal – to the MSPB. An Administrative Judge dismissed the case
for lack of jurisdiction – the MSPB said that the employee already
grieved the indefinite suspension and doesn’t get two bites at the
proverbial apple.

The Federal Circuit disagreed. The Court found that an Agency’s failure
to terminate an indefinite suspension gives rise to an MSPB appeal right
– separate and distinct from the appeal of the Agency’s decision
to impose the suspension in the first place. A condition must exist that
terminates the [indefinite] suspension, the Court’s decision reads.

You can read the whole decision by clicking here: Rhodes v. Merit Systems
Protection Board. Congratulations to the National Treasury Employee’s
Union (NTEU) for their successful argument on this case.

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